New government regulations may not always be embraced by industry, but they have the advantage of being subject to a well-established administrative process that requires the adopting agency to consider pros and cons, costs and benefits, and to take into account input from the public as it considers the rules. They are also subject to legal standards that eschew arbitrary and capricious agency action. In many cases, regulations are useful because they provide businesses with legal certainty and a safe harbor from litigation and enforcement. This is especially true in cases where Congress has established broad statutory mandates, such as the prohibitions on discrimination set forth in the Americans with Disabilities Act (ADA).
The Department of Justice (DOJ) is tasked with promulgating rules pursuant to the ADA as well as enforcing the statute. Recognizing that significant commercial activities were migrating to the Internet, and that most public-facing websites were inaccessible to people with disabilities, the DOJ began a proceeding in 2010 to adopt rules requiring the websites of public accommodations to be made accessible. This proceeding has been delayed repeatedly, primarily based on executive branch concerns about the economic impact these regulations would have, and the limited resources available to assist covered entities in their efforts to make their websites accessible. Despite these delays in the rulemaking process, the DOJ, advocacy groups, and private litigants continue to test the boundaries of the ADA by filing lawsuits and statements of interest taking the view that public accommodations are already subject to a high technical standard for website accessibility.
This approach has created a minefield for business owners that have public-facing websites, particularly because the ADA allows private litigants to recover attorneys’ fees when they prevail on a claim.
When the ADA was signed into law in 1990, it did not require immediate action by all covered entities to remove every structural access barrier. Historically, ADA obligations had limits. The legislative history of the Act acknowledged that significant efforts would be necessary to accomplish its objectives. New construction designed and constructed for occupancy within thirty months after the ADA’s enactment was required to be “readily accessible and usable by individuals with disabilities.” 42 U.S.C. § 12183. Existing structures were subject to a more lenient standard. Covered entities were required to remove architectural barriers in existing facilities where removal was “readily achievable,” or “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12183(9).
The effective dates for many of the ADA’s obligations were delayed so that covered businesses had time to come into compliance. The text of the ADA ordered the DOJ to adopt implementing regulations within one year of enactment. The DOJ issued these regulations in 1991, basing them on the 1991 Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the U.S. Access Board. In addition, these rules and the ADAAG were subject to an “extraordinary level of review and public participation.” ADA Title III Regulations, Supplementary Information.
Despite a clear indication that most public accommodations will incur significant costs to make their websites accessible, the DOJ’s approach to web accessibility has been dramatically different than its approach in the context of physical structures. In court filings, settlement agreements, and its ANPRM on the subject, the DOJ has advocated conformance to the Web Content Accessibility Guidelines, WCAG 2.0, at levels conforming to A and AA Success Criteria. While these guidelines are widely considered to be the prevailing standard for web accessibility, they are also known to require a very high degree of specialized expertise to implement. A skilled web development team typically requires two years to become proficient in website accessibility such that it no longer requires specialized assistance from outside vendors.
Even as its proceeding to adopt rules has been put off for another few years, the DOJ continues to espouse a very high standard for website accessibility and claims that public accommodations are already required to adhere to it. Meanwhile the DOJ persists in enforcing the standard without the benefit of public comment on important topics, like: whether there should be exceptions for smaller entities with fewer resources, whether there may be alternatives to full-scale WCAG 2.0 conformance that provide equal access, and whether existing websites should be subject to different compliance timelines than new websites in development.
Aside from cost, there are significant practical challenges to achieving full accessibility of commercial websites. Web developers and software engineers are rarely trained to consider accessibility issues, and operators are likely to need assistance from specialists. Those who specialize in accessibility are currently in high demand. When web accessibility is required because of private litigation or a DOJ settlement, website operators are given much less time to make their websites accessible than they would have had if rules had been promulgated.
Navigating the Minefield
Ultimately, businesses subject to the ADA are well advised to take proactive measures to ensure that their websites are accessible, even in the absence of regulations. Waiting for the DOJ to adopt regulations will cost more in the long run, as ever greater numbers of lawsuits are filed alleging ADA violations on the basis of inaccessible websites.
Businesses with public-facing websites should develop and implement a plan to conform core website functions to WCAG 2.0 within a reasonable time. They should also make accessibility a part of their website development process by training employees and building internal expertise. Businesses that rely on outside vendors for web development should ensure that their contracts include appropriate representations and warranties for conformance with prevailing web accessibility standards and compliance with the ADA. They should also review all relevant insurance policies for potential coverage in the event of a claim.